Tuesday, January 31, 2006

Both Visto and Good Technology have software agreements with leading mobile service providers such as Cingular and Sprint Nextel. Visto is a privately held company, founded in 1996, and funded by Oak Investment Partners, VantagePoint Venture Partners, Meritech Capital Partners, Draper Fisher Jurvetson, Rustic Canyon Ventures, Allegis Capital, and Blueprint Ventures.

Monday, January 30, 2006

About fifteen years ago, a Fortune 50 corporation passed out pens to its employees bearing the corporate logo and the inscription "We believe in the truth as we perceive it to be."

When the Minneapolis Star Tribune snagged inaccuracies in James Frey's book "A Million Little Pieces" (long before Oprah Winfrey selected it for her television book club), Frey responded to the Star Tribune: "I wrote what was true to me."

Now, we have the 2006 eBay brief with its reference to the 97% patent grant rate, about 4 years AFTER the authors of the 97% patent grant rate number had modified it. Is it all right to dissemble to the Supreme Court, but not to Oprah?

[As an aside, inquiries have been made to certain authors of the eBay brief about the accuracy of the 97% reference; no response as of yet.]

***to the EagleTribune:

Of Susan Decker's article on the eBay/MercExchange case, several points were not fully covered.

Of the text: "EBay and its supporters say the appeals court decision gives other companies an incentive to buy patents and use the threat of a shutdown order to force payments from businesses that make products covered by the patent," the decision by the Federal Circuit does not represent new law and, on the facts, MercExchange (Woolston) directly obtained its patents.

In a case wherein claims of a patent might cover only part of a system or product, patent owners can't really "extort settlements that vastly exceed the true economic value of their patents and impose enormous social costs, particularly in the computer and Internet industries;" the accused is free to design around as to the patented component. The accused should have read the patent in the first place, and made appropriate assessments and contingency plans, so that the question of a last minute "extortion" would never come up.

The text --Courts should be able to deny such a court order when a patent owner "never built or practiced its invention, exists solely to license its invention and has publicly stated that it is only interested in royalties,"-- pertains to a 1908 decision by the Supreme Court (Continental Paper, 210 U.S. 405), wherein the Supreme Court decided that courts could issue injunctions in cases where the patentee had never built or practised its invention. (see http://ipbiz.blogspot.com/2005/12/ebay-and-continental-paper-210-us-405.html)

The Decker did not mention text on page 40 of the eBay brief wherein eBay cited a law review for estimating the rate of patent approvals by the PTO to be 97%. First, the law review only estimated 97% to be an upper bound for grant rate (and in a footnote acknowledged the number was wrong). Second, the authors of the law review corrected the number in 2002, more than three years before the eBay brief. (see http://ipbiz.blogspot.com/2006/01/gross-error-in-ebay-brief-to-supreme.html)

Although many people have strong feelings about the issues in the eBay case, there is no excuse for a hyperbolic suggestion that the Patent Office grants patents on 97% of applications. It does not. It would be a strange world indeed wherein one could pull a fast one on the Supreme Court, but not Oprah Winfrey.

Microsoft has begun e-mailing its corporate customers worldwide, letting them know that they may need to start using a different version of Office as a result of a recent legal setback.

The software maker said Monday that it has been forced to issue new versions of Office 2003 and Office XP, which change the way Microsoft's Access database interacts with its Excel spreadsheet.

The move follows a verdict last year by a jury in Orange County, Calif., which found in favor of a patent claim by Guatemalan inventor Carlos Armando Amado. Microsoft was ordered to pay $8.9 million in damages for infringing Amado's 1994 patent. That award covered sales of Office between March 1997 and July 2003.

"It was recently decided in a court of law that certain portions of code found in Microsoft Office Professional Edition 2003, Microsoft Office Access 2003, Microsoft Office XP Professional and Microsoft Access 2002 infringe a third-party patent," Microsoft said in an e-mail to customers. "As a result, Microsoft must make available a revised version of these products with the allegedly infringing code replaced."

from the Guardian, Nov. 4, 2005 (merely for interest, not an endorsement of the views):

Randell Mills, a Harvard University medic who also studied electrical engineering at Massachusetts Institute of Technology, claims to have built a prototype power source that generates up to 1,000 times more heat than conventional fuel. Independent scientists claim to have verified the experiments and Dr Mills says that his company, Blacklight Power, has tens of millions of dollars in investment lined up to bring the idea to market. And he claims to be just months away from unveiling his creation.

This is scientific heresy. According to quantum mechanics, electrons can only exist in an atom in strictly defined orbits, and the shortest distance allowed between the proton and electron in hydrogen is fixed. The two particles are simply not allowed to get any closer. [IPBiz: huh?]

According to Dr Mills, there can be only one explanation: quantum mechanics must be wrong. "We've done a lot of testing. We've got 50 independent validation reports, we've got 65 peer-reviewed journal articles," he said. "We ran into this theoretical resistance and there are some vested interests here. People are very strong and fervent protectors of this [quantum] theory that they use."

Rick Maas, a chemist at the University of North Carolina at Asheville (UNC) who specialises in sustainable energy sources, was allowed unfettered access to Blacklight's laboratories this year. "We went in with a healthy amount of scepticism. While it would certainly be nice if this were true, in my position as head of a research institution, I really wouldn't want to make a mistake. The last thing I want is to be remembered as the person who derailed a lot of sustainable energy investment into something that wasn't real."

But Prof Maas and Randy Booker, a UNC physicist, left under no doubt about Dr Mill's claims. "All of us who are not quantum physicists are looking at Dr Mills's data and we find it very compelling," said Prof Maas. "Dr Booker and I have both put our professional reputations on the line as far as that goes."

Dr Mills's idea goes against almost a century of thinking. When scientists developed the theory of quantum mechanics they described a world where measuring the exact position or energy of a particle was impossible and where the laws of classical physics had no effect. The theory has been hailed as one of the 20th century's greatest achievements.

But it is an achievement Dr Mills thinks is flawed. He turned back to earlier classical physics to develop a theory which, unlike quantum mechanics, allows an electron to move much closer to the proton at the heart of a hydrogen atom and, in doing so, release the substantial amounts of energy he seeks to exploit. Dr Mills's theory, known as classical quantum mechanics and published in the journal Physics Essays in 2003, has been criticised most publicly by Andreas Rathke of the European Space Agency. In a damning critique published recently in the New Journal of Physics, he argued that Dr Mills's theory was the result of mathematical mistakes.

Sunday, January 29, 2006

Electronic textbooks through Cruzer Freedom

A new USB drive called Cruzer Freedom (http://www.sandisk.com/retail/cruzer-freedom.asp) allows students to download the texts and take them home, Made by SanDisk, this 256 megabyte drive can be used to store files, but also comes with a proprietary technology called FlashCP. Students can plug the drive into an Internet-connected computer and access a special Web site from which they are able to download e-textbooks, teacher notes, reference tools, and other resources. The technology is new, but has been piloted in several secondary schools that have moved to the use of digital textbooks. It would certainly be worth exploring.

***Separately,

Mandarin Chinese is being taught to students in Chicago. China has a population of 1.3 billion, and 3,000 Chicago students are taking Mandarin classes.

Can the Cruzer teach students the four basic tones of Mandarin, and aid in writing characters?

Most experts don't expect Blackberry service to be shut down. RIM could perform a design-around, or simply settle with NTP.

From the Richmond Times-Dispatch:

Though the judge could decide to cut off service to about 3 million U.S. BlackBerry users, experts do not think that will happen.

"The likelihood of the BlackBerry getting shut down is very slim, certainly less than a 10 percent chance," said Todd Kort, principal analyst at research firm Gartner Inc.

"Hopefully it won't come to that, but maybe [BlackBerry users] should be mildly concerned," said Carl Tobias, a University of Richmond law professor specializing in patent litigation.

He said a decision won't necessarily be made on Feb. 24, and the judge has some time to consider the case before writing an opinion. Spencer also could ask the two sides to continue trying to find a solution.

Government workers would be exempt from any restriction in service, according to a promise by NTP.

In court filings, NTP has said an injunction would not apply to members of federal, state and local governments or emergency workers.

But RIM has said it has no way of creating a "white list" to ensure that BlackBerry service for the roughly 1 million government officials and first-responders in the United States would continue. It said NTP's theory that an exception can be made for the group "is both unsupported and contrary to reality," according to court documents.

NTP has said it would ask the court to give BlackBerry users 30 days to find alternatives.

But they are by far the most popular of the wireless e-mail devices, holding more than half the U.S. market and still growing, Gartner's Kort said. Behind BlackBerry is chief rival Palm Inc.'s Treo.

Many other RIM competitors have been touting their products and services as worthy alternatives in the event of a blackout.

The Richmond suit is playing out against the backdrop of a case before the U.S. Patent and Trademark Office, which is re-examining the disputed patents and could rule in favor of the BlackBerry maker, according to court documents and published reports.

Unlike with the Eolas matter, claims of the NTP patents have been narrowed in re-examination and currently stand rejected. However, NTP gets to respond to the final Office Action, AND would be able to appeal. No final certificate in a re-exam issues until appeals are exhausted.

Saturday, January 28, 2006

The other story here is the media’s attempt to shore up public perception of embryonic-stem-cell research and therapeutic cloning even in the midst of the implosion of its most exciting “breakthrough” and the utter discrediting of the field’s most promising star.

There are ways to report a story to ensure that its import sinks deeply into the public’s consciousness. Think of Abu Ghraib; or of President Bush’s alleged culpability for the miseries suffered by the victims of Hurricane Katrina…or of the media’s incessant touting of embryonic-stem-cell research as the most likely source of miraculous medical cures, despite the current paucity of actual scientific verification.

Not only is such intensity missing in the media’s reporting of Hwang’s great cloning fraud; the coverage isn’t nearly as robust as the original “breakthrough” stories themselves. When the scandal broke, the New York Times and other papers ran matter-of-fact reporting on their front pages. How could they not? But television did not dwell on the story, and there has been an almost complete absence of investigative edge after the story first broke. Indeed, the Hwang story has generally been reported so blandly that it seems sure not to penetrate deeply into the public’s consciousness.

This tepid approach is exemplified by the two most popular newsweeklies. Michael D. Lemonick presented a thorough and accurate description of the facts surrounding Hwang’s fall in an article in Time. But toward the end of his article, Lemonick feebly — almost desperately — attempts to rehabilitate the rogue scientist’s reputation:

By all accounts, the tales of Hwang's dedication and personal discipline are all true. Hwang was one of the first to arrive in the lab, at 5 a.m., and rarely left before midnight. He rejected the role of aloof, inaccessible scientist to become a father-like figure for his young charges. And he introduced some genuine innovations into the science of cloning — gently squeezing the nucleus out of a donor egg rather than sucking it out violently and inserting the entire adult cell, not just its nucleus, into the hollowed-out recipient egg.

Never mind that this benign father figure apparently coerced his female associates to donate eggs. And never mind that we don’t even know whether Hwang’s technique actually worked.

Lemonick then characterizes one of the worst cases of science fraud in recent history to a mere stretching of the truth. Despite reporting previously that there is no evidence that the cloned stem-cell lines ever existed, he swallows Hwang’s claim that they were destroyed by a fungus and overlooks the possibility that the fungal infestation was actually a method of cover up:

Hwang claims it took six months to recover from the [fungus] disaster. But it also might be that Hwang's team couldn't recover quickly enough and began taking shortcuts to fill the gap. Under pressure from the government and the university, and with a deadline looming for publication in one of the world's most prestigious journals, the temptation to stretch the truth might have been irresistible...In the end, Lemonick suggests, Hwang may be responsible for the inaccurate Science paper, but he is not to blame. In Hwang's case, it may be that mistakes were made or frauds committed without his knowledge, but as head of the research team and lead author of the published results, he's stuck with the responsibility.At least Time made Hwang’s fraud one of its lead stories as the new year broke. Newsweek’s January 2, 2006, domestic edition, in contrast to a story in its May 31, 2005, issue that touted Hwang’s apparent cloning success as “a giant leap forward” in stem cell science, didn’t even report the story. And the international edition’s coverage barely mentioned the facts of the case at all, instead, deflecting readers away from the fraud itself to the continued vibrancy of science in South Korea.

Newsweek’s domestic edition finally got around to reporting the story in its January 15, 2006, domestic edition, devoting to it all of 346 words. The story lightly warns readers to “Get ready for ‘Hwang-gate’ mania” — a diminishing term that calls to mind popular fads such as Cabbage Patch Dolls rather than justified interest in an important story. And then readers are assured that the “mania” is nothing about which to be overly concerned:

The Hwang debacle isn't stopping U.S. scientists. Nor are they starting from scratch. Somatic cell nuclear transfer (SCNT) — the technique Hwang claimed to have mastered in humans — has already been accomplished in mice. If researchers can move it to people, they say SCNT will allow them to watch complex diseases develop in the petri dish, spot problems and then test drugs to fix them. [IPBiz note: the Newcastle group has done SCNT on humans and has published thereon. They did not extract stem cells from blastocysts.]

Contrary to the style and substance of most of the media’s reporting on this, the implications of the Hwang cloning scandal are deep and far reaching. For example, what, if anything, are we to conclude about the realistic potential of SCNT cloning to become a viable source of medical treatments? Are there other reasons to believe that the many other claims made in recent years about therapeutic cloning and embryonic-stem-cell research are actually more hype than hope? Does the apparent failure of Hwang to succeed with therapeutic cloning validate the argument that adult and umbilical cord blood stem cell research — already demonstrating distinct promise in early human trials — actually offer the most immediate potential for medical breakthroughs? How trustworthy is peer review, and does the system need reform?

Unfortunately, these questions remain mostly unexplored in the popular press. Indeed, based on the quality and depth of the reportage to date, the Hwang fraud scandal appears to be the story the mainstream media most wants to go away.

IEEE P1690 standard on carbon nanotubes

To bring uniformity to the disclosure of properties of carbon (fullerene) nanotubes,the IEEE has begun work on IEEE P1690(TM), "Standard Methods for the Characterization of Carbon Nanotubes Used as Additives in Bulk Materials". When completed, it will be the first standard to define methods for testing these additives and how to report the resulting performance data. The standard will help nanotube producers characterize purity, dispersion and other properties and also give end users confidence in evaluating carbon nanotubes from different sources. IEEE P1690 will apply to nanotubes independent of how they were fabricated."

Nanotechnology's Sally Ramsey

The Cleveland Plain Dealer had a story titled: Strange thinker follows a different path; Accidentally discovered paper waterproofing among her 12 pending patents, concerning work by Sally Ramsey.

Some text:

Sally Ramsey also shrugs off being considered an inventor. She prefers to classify herself as a strange thinker someone driven by a natural curiosity.

(...)The reasons that companies such as DuPont are interested in Ecology Coatings is because this technology can be used on paper, plastic and metal, said Mark Brandt, managing partner of the Maple Fund, a Cleveland firm that provides early-stage venture capital to tech companies.

Most finishings require heat, which requires natural gas, and natural gas costs are going through the roof, Brandt said. This technology is so versatile.

Without a target, or a lawsuit, NTP lacked leverage. And according to later court transcripts, RIM apparently didn't take the threat very seriously. NTP said RIM ignored the letter. The Canadian company countered that an internal review concluded it wasn't infringing on NTP's patents. RIM officials insisted they told NTP that. But RIM couldn't produce any evidence at trial that it had ever acknowledged NTP's inquiries — one in a series of costly mistakes that would later turn the judge and the jury against the company.

If RIM didn't think much of NTP's Jan. 27, 2000, letter, the formal notice in November, 2001, that NTP had filed an infringement case in U.S. District Court for the Eastern District of Virginia sure got its attention. It prompted a terse RIM news release — the first hint to outsiders of the battle to come. A defiant RIM said the infringement claim was “unsubstantiated” and dismissively characterized NTP's earlier licensing demand as “a collection of seemingly random marketing materials printed from RIM's website.”

***

RIM apparently couldn't look far enough into the future to see the train wreck ahead. Going after the maker of the BlackBerry was a stroke of legal genius. Until zeroing in on RIM, Mr. Stout and Mr. Campana didn't have a prayer of persuading a reputable law firm to litigate the case, particularly on a contingency basis (where lawyers get expenses and nothing else unless they win). But finding a law firm to pursue the maker of the Blackberry — a favourite toy of young lawyers — proved a relatively easy sell. NTP quickly hooked up with James Wallace of Wiley Rein & Fielding, a Washington intellectual property lawyer who conveniently happened to be between big cases. Some of his associates were avid BlackBerry users.

The die was cast. Unless RIM quickly conceded something to NTP — admit infringement and pay a licensing fee — it would be in for a protracted legal fight and an inherently risky trial.

**The article discusses the attitude of RIM toward NTP:

True to form, RIM's entrepreneurial bosses stood their ground. They regarded NTP as a vile patent “troll” — a company with dormant patents that preys on successful technology companies to extort fees from a hot-selling product.

Settlement is lawyer-speak. And the RIM and NTP saga isn't just about lawyers. It's also about two proud and determined inventors, and a growing pile of cash.

**Ill-fated battle of wills?

The lives of Mr. Campana and RIM founder Mr. Lazaridis are almost like bookends: Two working-class kids whose early tinkering with computers drew them into a life of invention and a passion for wireless gadgets. And yet their common bond — a drive to make a mark as innovators — is also what would turn a routine legal dispute into an ill-fated battle of wills. One of them wouldn't live to see the dramatic climax.

Mr. Lazaridis and Mr. Campana were born nearly a decade apart, but they had a lot in common. They grew up on the Great Lakes, 500 kilometres apart, one in Windsor, Ont., and the other on the south side of Chicago. They lived in working-class homes and would spend hours in their basements building gadgets. Working in isolation, they quickly developed a fascination and a passion for wireless technology.

***

“There's a tremendous amount of innovation and hard work that goes into taking an idea and realizing it and then making it into a product,” Mr. Lazaridis says defiantly. “There are 16 million lines of code in BlackBerry. Sixteen million. It's hard to imagine 16 million lines of code. They all have to work in harmony and perfection to make this thing do its job. Are you trying to tell me that one little concept is more important than another little concept, and that it didn't take man-years and man-years of effort to make all that stuff work?”

Lila Guterman has an article in the Chronicle of Higher Education entitled: Silent Scientist Under Fire: the American Collaborator of a Disgraced South Korean Is Keeping Mum.

The article mentions that Schatten first visited Hwang's Seoul lab in 2003 according to Dr. Snyder of the Burnham Institute. One notes that the priority documents for both the Schatten and Hwang patent applications were filed in 2003.

The Guterman article states:

It was Mr. Schatten's severing of his collaboration with Dr. Hwang -- despite the close relationship between them -- that helped spark investigations of the Korean research. Some American researchers praise Mr. Schatten as "basically a whistle-blower," says William R. Brinkley, senior vice president for graduate sciences at Baylor College of Medicine, who has known Mr. Schatten for decades.

Sadly, I have to take issue with this assertion. Blog posts about problems with the 2005 Science paper appeared within weeks after the electronic publication (May 2005), which is months before Schatten severed relations. Further, Schatten was probably aware of the investigations by Korean television (MBC, "PD Notebook"). Thus, it is more likely that Korean complaints about Hwang's research sparked Schatten's actions in November 2005, not the other way around. The Korean investigations by MBC went far beyond the problem of unethical (and under Korean law after Jan. 2005) illegal acquisition of eggs.

Klein's methodology for the New York study was denounced by the New York City Bar Association. Bar groups in several other states, notably Minnesota and Florida, have likewise attacked his work.On the last point, the three deans said Bosse was closely questioned by senators as to documented evidence -- rather than anecdotal -- of incompetent New York lawyers. The deans said Bosse offered no documentation. [reminds one of discussion of patent reform. There is more discussion of the peanut-butter-and jelly patent of Smucker than there is of a systematic problem with patent quality.]

In an e-mailed response for comment, Bosse wrote, "The purpose of the bar exam is to protect the public by providing reasonable assurance that those licensed to practice law in New York have met minimal competency standards. The criteria for determining who is qualified ... are set by the courts and include the requirement that applicants pass the bar exam. ... The passing score is intended to separate those applicants who are minimally competent ... from those who have not yet met that standard."She added, "The bar exam samples broadly the legal knowledge and lawyering skills of the population of candidates for admission to the bar. Malpractice claims and disciplinary complaints are snapshots of individual performances in practice. They are not a systematic or comprehensive evaluation of the competence of lawyers, either individually or collectively. While we looked at some available evidence ... these measures don't give us enough information either to validate an existing passing score or to support some alternative standard."

The NY bar exam people have a formula to convert the multistate results to give them a score of 660. Then, they scale the essay results (6 essays, each scored 1-10), to the same 660 median. Then they fuse all results.

The NY City Bar points out that people could be answering all essays very intelligently or very stupidly, but the results are scaled the same. Changing the cut point only changes the % who pass.

The first point of the City Bar was that changing the cutpoint would have a dramatically greater impact on black candidates than white (apparently, NY has data on median scores for blacks and whites, and the black median is lower, and many more blacks (proportionately) would not be admitted if the cut point were raised).

Any given individual can benefit by more study and get a higher raw score which will translate into a higher scaled score. The NY City Bar was merely pointing out that changing the cutpoint of the scaled score only changes the number who will be admitted. Klein and others argued that raising the scaled cutpoint would eliminate more incompetent lawyers. The City Bar's counter is that the scaled score is not a direct measure of "goodness" on the exam (the raw score would be).

As a different point, the City Bar questioned Klein's correlation only to the essay portion. On the bar exam (when I took it and apparently still true), test takers do very poorly on the NY state law multiple choice. Any given question is only 55% likely to be answered correctly, far lower than for the multistate. Because this portion accounts for only 20% of the result, the bar reviews tell test takers not to waste much time on this part of the exam, and most people don't. Anyone who actually practiced regular law in NY state would do well, but a student (like from Univ of Chicago) with no NY practice would have to invest a lot of time to score well.

One who failed the Arizona bar examination brought suit in the United States District Court for the District of Arizona against members of the Arizona Supreme Court's Committee on Examinations and Admissions, alleging that the committee members had conspired to restrain trade in violation of 1 of the Sherman Act by artificially reducing the numbers of competing attorneys in the state of Arizona through setting the bar examination grading scale withreference to the number of new attorneys sought desirable rather than with reference to some suitable level of competence.

Respondent Ronwin was an unsuccessful candidate for admission to the Bar of Arizona in 1974.

n5 According to Ronwin's complaint, the Committee announced before the February examination that the passing grade on the test would be 70, but it assigned grades using a scaled scoring system. Under this system, theexaminations were graded first without reference to any grading scale. Thus, each examination was assigned a "raw score" based on the number of correct answers. The Committee then converted the raw score into a score on a scale of zero to 100 by establishing the raw score that would be deemed the equivalent of "seventy." See n. 19, infra.

**ALSO

Note Impact of the Increase in the Passing Score on the New York Bar ...at www.nybarexam.org/summary.pdf

At issue is a case involving online auctioneer eBay and a company called MercExchange. Last year, the Federal Circuit Court of Appeals ruled that eBay violated MercExchange’s online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. But as part of the ruling, the court came to a perilous conclusion, holding that patentees who prove their case have a right to permanent injunctions under all but "exceptional circumstances," like a major public health crisis. This radical rule created an "automatic injunction" standard that ignored the traditional balancing and discretion used by judges to consider how such a decision might affect other public interests--including free speech online.

The CAFC had noted that a court can issue a permanent injunction barring infringement of a patent once the patent is determined VALID and INFRINGED, absent exceptional circumstances. The CAFC cited to a previous case for this proposition, so that the case did NOT "CREATE" an automatic injunction standard. Note that the US Supreme Court requested briefing on a 1908 Supreme Court case (Continental Paper) so that one readily sees that the issues at stake here are not exactly new.

EFF did not mention the reference in the eBay brief to the USPTO granting patents on 97% of all applications.

Are folks in China confused about the Energizer decision by the CAFC?

Eveready / Energizer filed a complaint with the ITC in April 2003, charging that about two dozen companies (many of them Chinese) were infringing on the mercury-free battery patent. As noted earlier on IPBiz,the Federal Circuit REVERSED a determination of invalidity (meaning the patent claim of Energizer is VALID).

Energizer then appealed to the U.S. Court of Appeals for the Federal Circuit, putting the ITC as defendant.

The official with the Fujian Nanping Nanfu Battery Co., Ltd. said the verdict of the U.S. court indicated that the Chinese battery makers have finally won the three-year-long lawsuit.

He said the victory is a great encouragement to Chinese exporters, who are currently besieged by various trade barriers. "It also helps clear the obstacles for Chinese batteries to enter the U.S. market."

The Fujian company is one of the largest alkaline battery manufacturers and suppliers in China.

Take a note to the Chinese battery makers infringing the patent: with more victories like this, you'll be out of this business!

CHINESE battery makers said yesterday in Beijing they welcomed the decision made by the US Court of Appeal for the Federal Circuit, which rejected the appeal of Energizer Holdings against the US International Trade Commission.

Lamar Smith is still talking about patent trolls but isn't explaining what happened to HR 2795, the Patent Reform Act of 2005.

"Rep. Smith is leading the charge to making the biggest changes in the patent industry in the last 50 years," Anthony O. Befi of IBM said. "It's a significant improvement in patent law." In June, 2005, Smith introduced the Patent Reform Act of 2005, which seeks to change patent practices to make it easier to challenge a patent that has been granted. It would also establish "disincentives for questionable patent applications," he said.

"This is looking to protect everyone, from the lone inventors in their garages to IBM," Smith said.

One thing that HR 2795 didn't attempt to fix was the fee diversion of money taken in by the USPTO to general revenue. The lack of resources is the biggest problem confronting the USPTO, and HR 2795 would have added more burdens to the PTO without giving more resources.

On January 27, 2006, Teva said a New Jersey District Court denied a motion for a preliminary injunction brought by Allegra sponsors Sanofi-Aventis Pharmaceuticals and Albany Molecular Research Inc in the Hatch-Waxman case concerning ALLEGRA / fexofenadine.

Barr and Teva have already racked up other victories in the dispute, including the grant of a summary judgment of non-infringement with respect to three patents and a summary judgment of invalidity on an additional patent in the case April 2005.

Friday, January 27, 2006

Gross error in the eBay brief to Supreme Court in MercExchange case

In November 2005, there was a post on IPBiz strongly questioning the accuracy of a footnote (and related main text) in the law review article by Gideon Parchomovsky and R. Polk Wagner, 154 U. Pa. L. Rev. 1 (Nov. 2005):

Incredibly, footnote 76 is to the first Quillen/Webster paper: See, e.g., Cecil D. Quillen, Jr. & Ogden H. Webster, Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office, 11 Fed. Cir. B.J. 1, 3 (2001) (indicating that once continuing applications are included, the patent approval rate is 95%). Quillen and Webster conclude that the PTO might ultimately approve as many as 97% of all patent applications. Id. at 13.

Fast forward to January 2006, and we have in the Brief of petitioner, eBay, at the Supreme Court [by (among others) Jeffrey G. Randall (Skadden Arps), Carter G. Phillips (Sidley Austin) ] at p. 40:

Generally, when reexamination occurs, one recent article states that nearly 74% of the time finds the patent invalid or restricts its claims. (…) This result is unsurprising given that an overworked PTO can spend a mere 18 hours on average to review a patent application before initial issuance. [citing to Parchomovsky (but not mentioning co-author Polk Wagner), 154 U Penn L Rev 1 and then citing to Cecil Quillen (but not mentioning co-author Webster), specifically the FIRST Quillen/Webster paper, 11 Fed. Cir. B J 1 (estimating the rate of patent approvals by the PTO to be 97%).

Please note that the 97% number is not correct. It was modified EVEN BY Quillen and Webster in the second Quillen/Webster paper. The first paper by Quillen and Webster was strongly criticized by Clarke in JPTOS and the second paper was strongly criticized by me in JPTOS. Yet, the 97% number has now ended up in a brief to the US Supreme Court.

It appears that the authors of the eBay brief may have looked only to the Parchomovsky/Wagner paper without examining the work of Quillen/Webster or the numerous criticisms of Quillen/Webster. In the end, it is sloppy scholarship by Parchomovsky/Wagner and the cite checkers at the University of Pennsylvania Law Review that facilitated this error, now sent to the US Supreme Court.

NOTE: Dennis Crouch at Patently O observed the presence of the 97% number in the eBay brief and forwarded a copy of the brief to me.

For those interested in an analysis of the errors (both numerical and legal) in the approach of Quillen and Webster, one can refer to papers published in2004 and in 2005.

Thursday, January 26, 2006

Cingular's patent application involving emoticon

At a mobile device, a method for generating a displayable icon that indicates the mood or emotion of a user of the mobile station, the method comprising:

providing an emoticon key that is to be selected by a user of the mobile station in generating the displayable icon, wherein the emoticon key is provided on a physical keypad of the mobile device, and wherein the emoticon key is labeled with a known emoticon;

in response to the emoticon key being selected, displaying a collection of graphical displayable icons that the user may select from, wherein at least some of the graphical displayable icons from the collection of graphical displayable icons indicates a mood or emotion; and

in response to a selection of one of the graphical displayable icons from the collection of graphical displayable icons, generating the one of the displayable icons for display on a display component of the mobile station, wherein the selection of the one of the graphical displayable icons is made using one or more navigation keys and selection keys on the physical keypad, and wherein the one of the graphical displayable icons is displayed in association with a textual message to be sent by the user using the mobile station.

Really clumsy drafting!

Claim 3:

At an electronic device, a method for generating a displayable icon that indicates the mood or emotion of a user of the electronic device, the method comprising: providing a single-stroke keypad option that is to be selected to generate the displayable icon that indicates the mood or emotion, wherein the single-stroke keypad option includes a key having the displayable icon depicted thereon; and in response to the single-stroke keypad option being selected, generating the displayable icon for display on a display component of the electronic device, wherein the displayable icon is displayed in association with a message to be sent using the electronic device.

Claim 13:

A computer-readable medium whose contents perform a method to cause a portable device to provide enhanced communication capabilities, the method comprising: providing at least one set of graphics to represent various human emotions or events, wherein the set of graphics includes at least one emoticon; providing, as default and without prior user input, a mapping between a single user-selectable key on the portable device and the set of graphics; in response to user-selection of the user-selectable key, displaying the set of graphics; and in response to user input selecting one of the graphics in the set of graphics, inserting the selected graphic into a text message.

Claim 22 actually uses the word "emoticon":

An apparatus for use in a wireless network by a user, the apparatus comprising: wireless transceiver means for enabling wireless communications; user input means for receiving user input; display means for displaying information to a user; memory means for storing data and instructions; and processor means coupled to the wireless transceiver means, user input means, display means and memory means; wherein the processor means, executing at least some instructions in the memory, permits the user to compose a text-based message; and wherein the user input means includes a button or button combination that, when actuated by the user, permits the user to include at least one emoticon in the text-based message, wherein the user actuation of the button or button combination is not a selection of a series of punctuation or alphanumeric characters, or a user-defined mapping of a button or button combination to an emoticon.

Stephen Shankland reports that Linux keyholder Linus Torvalds isn't keen on aligning the kernal with a new, and as yet incomplete, GPL license. Torvalds said that it is "insane to require people to make their private signing keys available," referring to the anti-DRM element in the GPL 3 draft specification. More infighting among the Linux stalwarts and the formation of polarized factions will turn the Linux community into open source software version of the Mideast–lots of talk, posturing, and little progress.

One recalls Torvalds is the fellow who advised his people not to read patents, sort of setting the public disclosure function of patents on its head.

I have published an article "Patent Reform 2005: Earth to Major Tom" about problems with having peer review of patent applications. It was not cited in the Community Patent Project, but may be it should have been. I also pointed out the substantive problems with peer review of the fraudulent papers of Jan-Hendrik Schon, now amplifield by the peer review of the fraudulent papers of Woo Suk Hwang in embryonic stem cell research. The Community Patent Project did not talk about that issue either.

From the Project:

The Community Patent Project needs your help! In order to move from proposal to prototype for an on-line system for open, community patent review we need the input of lots of people contributing to the design of the software and the practices embedded in it.

Of problems:

Participants will game the system. How can you ensure that people with conflicts of interest won’t place speed bumps and stumbling blocks in the path of their competitors?

Absolutely! Competition will drive more information into the process. So long as people make valid arguments as rated by their peers, their personal agenda is irrelevant. Having many participants in the process dilutes the effect of any bad apples or unconstructive participants. Within any social reputation system, norms evolve to safeguard the quality of participation and we can expect something similar here. It is also standard and unproblematic to require participants to sign an affidavit representing that they do not have a conflict of interest. The affidavit can include a disclosure of the expert’s last two employers and areas of current commercial research. Direct competitors might be prevented from rating a particular invention. The National Science Foundation, the National Research Council and the National Institutes of Health both have well-established regulations and disclosure requirements to weed out conflicts among peer-review participants.[4]

IPBiz: one notes the recent issues with conflict of interest at the NIH. Of the Hwang-gate matter, one remembers that Hwang Woo-Suk checked the box on the form of the journal Science indicating that he had a patent application pending, and no followup was done by Science to evaluate the conflict of interest on the part of the author. Are referees going to be diligent about conflicts of interest? Are administrators? I remember once that I returned referee forms to a journal of the American Chemical Society, saying that I had a conflict of interest and the editor sent the paper back to me saying to referee it anyway.

The citation --Finally, how likely is disclosure of a patented process to spur research by others into the uses to which the product may be put? To the extent that the patentee has power to enforce his patent, there is little incentive for others to undertake a search for uses.-- one contemplates the Integras of the world after the Supreme Court decision in Merck v. Integra. There will be lots of Mercks putting the patents of the Integras to use. (citation from Brenner v. Manson, 383 U.S. 519, 534 (1966) long before the Hatch-Waxman Act and the Supreme Court interpretation of 35 USC 271(e)(1))

There is an oblique allusion to the patent quality problem:

Hopefully, yes. We grant too many patents already.

There is no reference to substantiate why the USPTO grants "too many" patents.

Rational ignorance is intentionally built into the patent system. According to Mark Lemley, since most patents are never litigated or even licensed, spending too much time and money on initial review is a waste and “decisions can be made much more efficiently in litigation.” Why invest in process review?

When Lemley wrote this[13] he contemplated the choice between imposing the cost on inventors upfront or after the fact and deemed it more cost effective to impose the costs of review on those who are invested enough in their patents to justify litigation. But it is no longer a choice between imposing costs on those seeking to litigate versus prosecute. The Community Peer review system does not impose any additional cost burden on the inventor and, at the same time, it reduces the costs of litigation. It also does not impose the costs of an inter partes interference proceeding,[14] which must be borne by the inventor. Lemley does not measure the significant costs and chilling effects that the overhang of uncertain patents subject to challenge creates in the industry. Furthermore, it ignores the Supreme Court’s clear statement that “primary responsibility for sifting out unpatentable material lies in the patent office. To await litigation is – for all practical purposes – to debilitate the patent system.”[15]

Why is so much of the scientific community willing to distort the truth about stem cell research? If there's one lesson from the scandal of Woo Suk Hwang, it is that stem cell researchers are human. Like all occupations, there are those who will use dishonest means to make money, and with stem cells, there is plenty of money to be made.

The federal government spent $25 million on stem cell research in 2004. That same year, despite a huge state budget deficit, Californians approved a proposal to set aside $3 billion for stem cell research. In addition to those funds, the 1980 Bayh-Dole Act allows scientists to patent the results of publicly funded research. Embryonic research, with more safety obstacles than adult, presents more opportunities for patents. By giving the public unrealistic expectations, embryonic researchers gain access to more public funds. And with exclusive rights over those products, researchers can develop and sell them for their own gain.

Speaking on Woo Suk Hwang's fraud, the head of an investigative committee for Seoul National University, where Hwang performed his research, concluded "such an act is nothing other than deception of the scientific community and the public at large." A good start to preventing any such scandals in America would be to end the Bayh-Dole Act's granting of exclusive patents, and to require scientists to disclose their discoveries instead. If public money is used for research, the benefit should go to the public, not just a few scientists. As California State Sen. Deborah Ortiz put it, "The public is not only waiting for cures, but is footing the bill for research ... that may not benefit them."

The Washington Examiner called for investment in adult stem cell research on pragmatic grounds:

In December, one of Maryland's own biotech firms -- Osiris Therapeutics of Baltimore -- announced a landmark discovery of its own: Adult bone marrow stem cells do not provoke the kind of immune reaction between individuals (or species) that virtually all embryonic stem cells do, making them a superior option for bioengineering cartilage, bone and blood tissue for transplants. Earlier this month, Australian scientists reported success in regenerating an entire milk-producing mammary gland from adult stem cells taken from the breast tissue of a mouse.

Despite the fact that adult stem cells can be easily harvested with no ethical ramifications, Ehrlich plans to let the Maryland Technology Development Corporation determine how the $20 million in state funding should be spent. This is a cop-out. Elected officials should be making these decisions, not groups that stand to profit from them. As Neil Munro pointed out in a 2001 National Journal article, there are often hidden financial links between researchers at public institutions and the private companies that patent their discoveries. At the very least, Maryland taxpayers deserve a fair return on their investment whenever future cures are found.

Two decades of federally funded fetal stem cell research failed to produce a single unqualified therapeutic success, while adult stem cells are currently being used to treat thousands of patients without crossing any moral boundaries, so it's pretty clear where any additional funding should go. Last session, the Maryland General Assembly's only physician, Senate Minority Whip Andrew Harris, R-Baltimore County, opposed funding embryonic research on those grounds.

Ehrlich should summon the political and moral courage to do the same.

Maybe the legislators in New Jersey (the only state so far to actually give state money for stem cell work)should take note.

The AP has a story on the role of Gerald Schatten of the University of Pittsburgh in the Hwang embryonic stem cell matter (his co-authorship of the paper "Patient-specific embryonic stem cells derived from human SCNT blastocysts," Science 2005, 308, 1777.

It doesn't focus on his role in writing the paper, and it does not mention his patent application.

**In interviews with The Associated Press over the past week, former colleagues called Schatten a man of high standards with an irrepressible enthusiasm for science, although one former collaborator questioned whether his drive for recognition may have hurt him.

"From my perspective, he's a completely honest and ethical person, and I think that if he were directly involved in some of this misconduct that went on, that's completely out of character," said Duane Compton, a Dartmouth College biochemistry professor who collaborated with Schatten over a period of about 10 years.

Schatten has said that he was not directly involved in Hwang's laboratory research, and thus could not vouch for it, although he was listed as senior author or co-author on some of the South Korean's papers. Those papers include a May 2005 article claiming that Hwang had derived patient-specific stem cell lines from cloned human embryos.

In South Korea, prosecutors have found no evidence to substantiate Hwang's claims of creating cloned stem cells. The scientist has accused colleagues of deceiving him and alleged that some of the cloned embryonic stem cells had been switched without his knowledge.

Schatten did not respond to interview requests by phone and e-mail. A university spokeswoman did not return calls seeking comment on the investigation. The university is expected to release a statement on its findings by early February.

Possible consequences of the investigation remain unclear.

Dr. Arthur Levine, dean of the university's medical school and Schatten's boss, has said only that he will consider appropriate disciplinary action when the probe is complete.

Compton said the possible demise of Schatten as a vocal supporter of stem cell research — a contentious field because of its use of human embryos — is "one of the saddest parts of this whole thing." Schatten has helped educate members of Congress and other laymen about the potential therapeutic benefits of stem cells.

"He's always been really good at that and he's always been very balanced about the potential gains as well as the potential problems that exist," Compton said. "He's never painted some pie-in-the-sky picture." [IPBiz note: one might look at the prophetic claims in Schatten's patent application.]

Joan Hunt, a professor at the University of Kansas Medical Center, who worked with Schatten at the Woods Hole Oceanographic Institution in Massachusetts, complimented his skill as a researcher but said his public support of stem cell research "is his tendency and maybe his weakness."

"I think that Jerry, more often than not, if asked to be senior author, would say yes if he thought it was a good publication," she said. However, "he has hundreds of publications, so it's not as if he needs another paper." [IPBiz comment: but Schatten and Hwang did NOT share inventorship on the patent applications! Perhaps he did need the patent? Further, Schatten and Hwang were the writers of the 2005 paper in Science, so it's not as if this were a "complimentary" authorship [the ethics of which might be separately questioned.]

Schatten was already a prominent reproductive biologist specializing in monkeys by the time he arrived at the University of Pittsburgh in 2001. [IPBiz note: one might look at the details surrounding Schatten's departure from the Oregon Primate Research Center. See IPBiz post on January 9.]

He is credited with having created the first monkey to contain DNA from another animal — in this case a jellyfish. He was reportedly interested in adapting Hwang's techniques for use in the primates. [IPBiz note: One perhaps should read Schatten's US patent application.]

Robert Lanza, a cloning expert at the Worcester, Mass.-based biotechnology company Advanced Cell Technology Inc., said he has a high regard for Schatten's work.

"It's just a real shame that this has happened to him," he said.

***Advanced Cell Technology [ACT] was involved in patent interference with Geron over technology related to cloning Dolly the sheep. ACT lost badly.

Wednesday, January 25, 2006

Philip Campbell, the Editor-in-Chief of Nature has, however, indicated that if breach of the journal's policy were to be confirmed, the journal would publish a correction.

Correction? But can a mere publication of correction suffice to compel authors to come out openly?

In 2002 the Editor, Richard Smith of the British Medical Journal wrote in an editorial "... Several studies have shown that such conflicts are rarely declared in most journals — despite good evidence that most authors have them."

Readers' perception

Smith pointed out, "The problem with conflicts of interest is not declaring them."

But when authors do declare them it does no good either as revealed by a survey that BMJ undertook with its readers. It found that readers discounted heavily those studies that had conflict of interest.

So what should authors like Hwang do?

"... Integrity of a journal rests jointly on the ethical behaviour of authors and editors. ...

"How an editor is perceived to handle this responsibility has far-reaching effects on the trust of readers in a journal," noted Editor Martin J. Tobin in 2004 in an editorial in the American Journal of Respiratory and Critical Care Medicine.

That pressure [for RIM to settle] persists even though the Patent Office has issued preliminary rulings invalidating most of the disputed patents held by NTP, said Maebius, a former Patent Office examiner whose firm is not involved in the case.

U.S. District Court Judge James Spencer, who has overseen the case since it was filed more than four years ago, has said in the past that his rulings and timetable won't be influenced by the patent re-examination.

That's reasonable, given that Research in Motion had a full trial before a jury whose infringement finding was upheld on most counts on appeal. A judge's mandate is to rule given the situation at the time of the trial, Maebius said.

"He's within his rights to ignore the re-examination, especially given the timetable," he said.

**That makes it unlikely Spencer will wait to issue an injunction during the hearing set for next month if the two parties can't reach a settlement. Final legal briefs on the injunction are due Feb. 1.

"This judge has said 'enough is enough,'" said Rod Thompson, a partner in the San Francisco office of Farella Braun & Martel who's practiced patent law for more than a decade. "I don't think his attitude will change just because the Patent Office is moving faster," Thompson said.

**Although the law isn't clear cut on the issue, it's unlikely that NTP would be able to collect any future royalties from a licensing agreement if the patents are invalidated.

RIM is on the hook for at least $200 million in past damages. That liability won't go away regardless of the outcome of the patent re-examination, according to Thompson.

The first part of the story identifies [obliquely] the backlog of applications at the USPTO:

The number of patents issued by the federal government declined by 11 percent in 2005, the second consecutive year to show a decrease in granted patents.

Yet, the U.S. Patent and Trademark Office says that patent applications increased last year by more than 8 percent.

The disparity represents a mounting backlog of pending patents at the patent office, which has grown to "historic proportions," in the words of Jon W. Dudas, director of the patent office. [IPBiz note: while there is a backlog of unexamined patent applications at the USPTO, the cited data doesn't actually prove it. It would have been more direct simply to present the numbers of unexamined applications and the anticipated wait in various art groups.]

The article alludes to proposed rule changes without identifying the substance of the proposals:

In a bid to improve the bottleneck, patent officials have embarked on a broad overhaul of the agency's operations, including rule changes intended to streamline the patent process. But the rule changes have already stirred controversy among inventors, patent lawyers and others.

"There's absolutely no question that it's going to be controversial," said Ronald J. Riley of the Professional Inventors Alliance.

"It's a very complex issue, but the bottom line is that the essence of these rule changes may be good for the bureaucracy, but they are not good for innovators and innovation."

While the rules intend to reduce patent examiners' workloads, some patent lawyers said the result seems likely to shift much of that work – and the cost – to applicants.

Proposed limits on the practice of filing continuations, which seek additional protections for existing patent applications, has alarmed the biotech, software and electronics industries, Zura said, because it often takes years to develop some inventions.

"I'm concerned. . . . This is a big change," said Chris Steinhardt, a San Diego patent lawyer who is scheduled to discuss the changes this morning at a seminar hosted by the Los Angeles Intellectual Property Law Association. The 9 a.m. session at the Skirball Cultural Center in Los Angeles is the first in a series of nationwide presentations planned by senior patent officials in coming weeks.

La Quinta presentation

Patent officials plan to make similar presentations early next month in Chicago and at La Quinta Resort & Club during the midwinter meeting of the American Intellectual Property Law Association. The reaction so far has been "interesting," the Commissioner for Patents, John J. Doll said in a recent interview.

"People seem to be leery and skeptical," Doll said, explaining that the agency's road show is part of a broader effort by patent officials to "sit down and explain our reasoning."

In November, the patent office said it issued 165,485 patents in the fiscal year that ended in September – and had received 406,302 patent applications, along with 323,501 applications for trademark registration.

An independent tally prepared by a Delaware research firm, IFI Patent Intelligence, found the number of U.S. patents issued in 2005 was 143,831.

IBM earned more U.S. patents than any other company in 2005, with 2,972, according to IFI's tally. It was the New York company's 13th consecutive year at the top of the list, but it also marked a 9 percent decline from 2004 and was the first time IBM has scored fewer than 3,000 patents since 2001.

IFI found that Qualcomm topped the list of San Diego-based patent recipients, with 200 patents issued to the wireless technology giant in 2005. That was a 29 percent decline from the 283 patents granted to Qualcomm in 2004, IFI said.

In past years, Doll's office has been criticized for issuing a glut of patents for dubious innovations and the agency moved last year to make quality a higher priority in patent applications.

As a result, Doll said, examiners allowed fewer patents last year.

In 2005, for example, the percentage of patent applications that were granted was 58.7 percent, Doll said. In the previous year, the percentage of allowed applications was 62.6.

The proposed rule changes would build on that effort to implement what Doll characterized as quality control measures.

Stiffer regulationsThe proposed rule changes would tighten the number of independent claims that will be allowed in each patent application and clamp down on requests for continued examinations, among other things. The agency says the revised rules should improve the quality of patents that are granted, "making them easier to evaluate, enforce and litigate."

"I can see where they think this is going to help them with a number of reworked applications," said Steinhardt, a partner in the San Diego office of Knobbe Martens Olson & Bear.

But Steinhardt said the proposal also "limits your options and it can drive up the cost significantly for prosecuting these patents."

In a news release, the patent office said that almost one-third of the 355,000 new patent applications filed in 2004 involved inventions that had already been reviewed. The applicants had resubmitted most of those applications with only limited changes to the claims, or sometimes, to seek a fresh review of claims that the patent office had previously rejected.

"While some resubmissions are necessary," the statement said, "addressing them detracts from the agency's ability to examine new patent applications."

The patent office, which six months ago moved into a new headquarters in Arlington, Va., also wants to expand its staff by nearly 25 percent.

Today many patent applications arrive on compact discs that contain millions of pages of data. As a result, the volume and complexity of patent applications have been outpacing the staff's ability to examine them.

The time required for the office to issue a patent, on average, is now close to three years after an application is filed, said Darlene Slaughter, general manager of IFI.

Office 'overwhelmed'"The patent office is overwhelmed because they don't have enough staff," Slaughter said. Once a patent application is filed, the average time required for a patent to issue is now 29 months, she said. The patent office has more than 7,000 employees, including some 4,100 examiners, Doll said. The agency hired a record 978 examiners last year, but the patent office still wants to hire 1,000 more examiners this year.

Such monumental staffing increases have prompted patent officials to institute a new training academy at the agency's headquarters so prospective examiners can be trained in a collegiate setting.

"Over half of our new hires this year, over half of the new patent examiners, will go into the electrical arts," Doll said. The category includes a broad array of patents that includes telecommunications and computer-related categories.

Tuesday, January 24, 2006

The U.S. Supreme Court Monday, in a 7-2 decision, said a unit of ConAgra Foods Inc. (CAG) failed to follow the correct appeal procedures when challenging an adverse patent ruling in its dispute with Unitherm Food Systems Inc.

The opinion by Justice Clarence Thomas could lead to the reinstatement of a jury verdict against the ConAgra unit for as much as $20 million. The ConAgra unit had sued Unitherm Food Systems of Bristow, Okla., alleging patent violations of meat-browning equipment and processes used to prepare precooked food products.

Justice Thomas said the company didn't properly challenge evidence used by a federal jury in reaching a verdict against Swift-Eckrich Inc., the ConAgra unit. The ruling overturns a decision by the Washington-based Federal Circuit Court of Appeals, which handles patent cases on appeal.

Unitherm Food Systems of Bristow, Okla., sued ConAgra in 2001, alleging ConAgra had obtained a patent for a meat-browning system in 1999 that Unitherm had developed and tried to sell to ConAgra.

In 2000, ConAgra sent a letter to other food companies warning them not to infringe on ConAgra's patent by doing business with anyone selling a similar process.

ConAgra argued that its patent was unique, but a jury found against the Omaha-based company, saying ConAgra had violated antitrust laws and awarding $18 million in damages to Unitherm.

ConAgra appealed, arguing there was not enough evidence to show it had done anything more than try to enforce what it thought was a valid patent. In part questioning whether enough evidence had been presented to show Unitherm had suffered economic harm, the appeals court ordered a new trial.

Unitherm appealed to the Supreme Court, arguing that ConAgra failed to properly appeal the case.

The high court agreed, ruling that ConAgra was denied a motion to dismiss the case based on insufficient evidence before it was submitted to the jury, and the company should have filed a similar motion immediately after the verdict was returned. [ie, Rule 50]

Reuters: France's Sanofi-Aventis said on Jan. 24, 2006 it would "vigorously defend" the patent on its blockbuster blood thinner, in response to market rumours that the U.S. Food and Drug Administration had authorised Canada's Apotex to market a copycat version of the drug.

The Zipper on Times Square for most of the day on Jan. 23, 2006 announced the refusal of the Supreme Court to hear RIM's appeal in the Blackberry case.

From the AP:

The U.S. Supreme Court on Monday, Jan. 23, refused to intervene in a messy patent lawsuit that could force the maker of the popular BlackBerry e-mail device to shut down or alter service in the USA.

BlackBerry maker Research In Motion had asked the Supreme Court to re-examine the reach of U.S. patent law, since RIM is based in Canada. As expected, the court refused.

The AP story also noted:

The case illustrates the need for patent reform, Stephen Maebius said. No one has accused RIM of stealing from NTP, but under U.S. law, a company can be guilty of infringement even if it didn't know about another patent.

The whole point of the patent system is to facilitate public disclosure of information that falls within the patent law's requirements of utility, novelty, and nonobviousness. Innovation moves faster if people read about the publicly disclosed information and act accordingly. Encouraging people to "not read" information and rediscover what has already been done is simply wasteful. Of course, people who infringe claims of a patent are found guilty, whether or not they knew about the patent.

There may be a design-around of the NTP patents:

RIM said it has a software workaround ready if NTP wins in court. Some customers are already testing it, according to Rob Sanderson of American Technology Research.

Five or six times a year when Dr. Richard Smith was editor of the British Medical Journal, he would receive scientific papers that he suspected were fabricated or had other ethical problems. Simply declining to publish them didn't seem like enough to protect the public.

So Smith would look for someone, anyone, to investigate - an employer, a government agency in the researcher's country, a fellow journal worried that the scientist ultimately would get a flawed study published elsewhere if it weren't discredited.

But all too often, Smith said, he wouldn't be able to find anyone to help - or enough time or money for the journal to pursue such an investigation itself.

"As editors, you have an obligation to say you want to find someone to look at it, unless it becomes completely impossible," he said of suspect research.

***When I was on the Ethics Task Force of the American Chemical Society (ACS), I tried to create a mechanism whereby people questioning data or conclusions of an article in an ACS journal could present those questions in the ACS journal. The majority of the Task Force determined that editors were the preferred arbiters. Richard Smith's statements indicate that some editors think they could use some help.***

Bell also notes:

The problems aren't just academic. The world's thousands of journals perform a gatekeeping function arguably as important as that of the Food and Drug Administration, though they have no regulatory authority. Most print only studies that have been reviewed by panels of volunteer experts, making publication a sort of stamp of approval from the world of science.

A study published in a credible journal can influence the trajectory of a researcher's career, the focus of future science and - perhaps of the most immediate importance to the public - the practice of medicine itself.

"The stakes are huge," Brian C. Martinson, a researcher who has studied competition and misconduct among scientists, said, singling out the Hwang case. "The financial stakes, the prestige stakes, are huge for the Korean government as well as for the scientist."

The underlying problem the journals are dealing with is the competitive nature of science run amok, argues Martinson, a research investigator for HealthPartners Research Foundation in Minneapolis.

Martinson co-authored a paper in Nature last year that indicated misconduct might be far more prevalent than high-profile anecdotes indicate. The study found that 33 percent of researchers surveyed acknowledged engaging in more "mundane" kinds of misbehavior, such as "changing the design, methodology or results of a study in response to pressure from a funding source."

Bell discusses some of the proposed remedies:

New safeguards "could include, for example, requiring all authors to detail their specific contributions to the research submitted, and to sign statements of concurrence with the conclusions of the work," Editor-in-Chief Donald Kennedy said in a statement last week. "We are implementing improved methods of detecting image alteration, although it appears improbable that they would have detected problems in this particular case." [IPBiz note: at a minimum, journals should require declarations analogous to those required by the United States Patent Office.]

At the Journal of Thoracic and Cardiovascular Surgery, Editor Andrew S. Wechsler said researchers will be banned from publication for up to two years if they fail to disclose an important financial relationship with a research sponsor.

Still, journals say they can only do so much.

"The issue is, the whole field of science depends on trust," said DeAngelis, the JAMA editor in chief. "We're not detectives."

In fact, many journal editors say, peer review - as the vetting of journal articles for publication is known - was never meant to detect fraud. Generally, they say, the unpaid volunteer scientists who review papers aren't looking for it. Their job isn't to drill into mountains of data to determine whether each submitted statistic is accurate (there can be tens of thousands of such data points in some research), but to review the researchers' techniques and whether their conclusions are supported.

"That's sort of letting themselves off the hook," Dr. Peter Lurie, deputy director of Public Citizen's Health Research Group. "It's a poorly performed role because too many reviewers do a sloppy job: They tend to be generous to their colleagues."

But even when peer review fails, journal editors point out, the world often finds out about fraud because the larger system of scientific inquiry catches it. After publication, other scientists who read about an experiment may find its flaws by trying to replicate it, a way of validating a paper's hypothesis.

"The real arena to catch error is after publication," said Peter Suber, a research professor at Earlham College and a proponent of free, online publication of scientific research.

Arthur Caplan, a University of Pennsylvania professor of bioethics, believes the overall system of journal-sponsored peer review still works well. If "there seems to be more fraud than there used to be, it's probably a function of more science and more experiments," he said.

But today's blistering pace of science, the growth of company-backed research and the increasingly international nature of experimentation have convinced some, including former British Medical Journal editor Smith, that the system needs fortification.

Adil Shamoo, editor of the journal Accountability in Research, suggests mandatory classes on research ethics for scientists. He teaches research ethics at the University of Maryland, though it's still an elective for many. He also long has supported random audits of grant-backed scientific papers by an independent agency.

"If somebody applies for a grant, he has to promise he's subject to that random audit if he's chosen," Shamoo explained.

Smith, who left BMJ in 2004 and became an executive at UnitedHealth Group, said the Singh case taught him that journals can't handle such investigations alone. Once, he and an account in the BMJ detailed, after months of seeking additional data from Singh, he got a box in the mail - filled with sheets of data in handwritten pencil.

"Nobody knows how many scientific journals there are," Smith said, estimating there could be as many as 50,000. "We were the BMJ, one very small part of the forest. It could be that everywhere else in the forest, everything's fine. But I doubt it."

Monday, January 23, 2006

Reuters: Nellcor, a division of Tyco International Ltd. ( unit Tyco Healthcare, said on Monday, Jan. 23, 2006 it paid $265 million for damages and $65 million in advance royalties to settle patent litigation with Masimo Corp., a private company.

Nellcor said it will stop shipping its current platform of pulse oximetry products, used to monitor vital signs, after the end of January, but will still provide service and sensors for previously sold products.

Nellcor said it will sell its new line of pulse oximetry products in exchange for ongoing royalty payments to Masimo, adding that the settlement does not affect its 2006 earnings outlook.

The benefits of nitrogen (rather than air) in car tires: reprised

Further to a post on IPBiz in October about the "value" of using nitrogen in tires because nitrogen is four times heavier than oxygen, the Trenton Times of January 22, 2006 (page AU7) was also pushing the use of nitrogen in tires.

In the column "Ask the auto doctor" by Junior Damato, the doctor is asked

I would like some information on changing the air in my tires to nitrogen. Would this be worth doing?

and the doctor answers:

Nitrogen in tires has been used for many years in both military, NASCAR, and commerical applications, including airliners. Unlike air, nitrogen will prevent corrosion in side alloy rims and will not leak as fast as air in the tires. All tires will have a small amount of air loss over time. Over the next few years, nitrogen will become more popular.

What can one say?

Among other issues, we have the problem of proof through imprimatur (i.e., it must be right because NASCAR is doing it), just as we have the problem with BlackLight (hydrinos must be right because the USPTO issued a patent) and SCNT (it must be right because Science refereed and published two papers by Hwang Woo Suk). Where's Bob Park when we need him?

Sunday, January 22, 2006

The Bayh-Dole Act and murder [the case of Jonathan Nyce]

NBC's Dateline on January 22, 2006 featured the story of Jonathan Nyce, a Ph.D. entrepreneur in New Jersey who was convicted of murdering his wife. Not thoroughly discussed was the fact the Nyce's company, EpiGenesis Pharmaceuticals, was a spin-off of technology developed at East Carolina University, and that his company was generated through the auspices of the Bayh-Dole Act. In the end, the technology washed out. Nyce is currently in prison serving a sentence of 5-10 years, but has appealed.

A startup company has spun out of East Carolina University to tackle some old diseases with an innovative new weapon: epigenetics. Based on technologies developed by Dr. Jonathan Nyce, a professor of molecular pharmacology and therapeutics, EpiGenesis Pharmaceuticals Inc. is developing a new class of proprietary therapeutics aimed at a variety of diseases, including cancer and asthma. EpiGenesis' strategy is to operate as a virtual company, developing its products to the point where the company can attract corporate partners to carry the drugs through to commercialization. The fledgling firm is headed up by Nyce, the chairman and chief scientific officer, and Interim President Dennis Burns.

Burns — head of The Delta Group, a business development firm in Raleigh, and former vice president for licensing at Ortho Biotech — came on board after Nyce approached him following a Bio-technology Roundtable meeting at the North Carolina Biotechnology Center. "We hit it off, so here we are," Nyce said.

Epigenetics is a way of treating disease by manipulating genetic expression at the level of messenger RNA (mRNA). The instigating force behind many ailments is aberrent gene expression, such as the over-production of cytokines that causes the suffocating sensation of asthma. "We're looking at disease in a different way, saying disease is characterized by this discor-dant gene expression," Nyce said. "We're asking, how can we intervene in the expression?" EpiGenesis has two lead products under development, EpiGenRx, an asthma medication, and EpiCyte for treating acute myelenogenous leukemia, or AML.

Asthma is the most common respiratory ailment in the United States, afflicting some six million people. With a $3 billion worldwide asthma drug market, EpiGenRx has the potential to become the company's first breadwinner.

Relevant patents include

5,994,315 [Low adenosine agent, composition, kit and method for treatment of airway disease] Abstract: An oligonucleotide which is antisense to a mRNA encoding a polypeptide involved in airway disease(s) contains up to three adenosines per every 21 nucleotide a method of treating airway disease in a subject in need of such treatment comprises topically administering to the subject an antisense oligonucleotide in an amount effective to treat the airway disease, where the antisense oligonucleotide is essentially free of adenosine. Pharmaceutical formulations are also disclosed. Assignee: East Carolina University (Greenville, NC) Government interest: This invention was made at least partially with United States Government support under grant RO1CA47217-06 from the National Cancer Institute. The Government has certain rights to this invention.

6,025,339 [Composition, kit and method for treatment of disorders associated with bronchoconstriction and lung inflammation]Abstract: A method of reducing bronchoconstriction in a subject in need of such treatment is disclosed. The method comprises administering to the subject an antisense oligonucleotide molecule directed against the A.sub.1 or A.sub.3 adenosine receptor in an amount effective to reduce bronchoconstriction. The method is useful for treating patients afflicted with asthma. Pharmaceutical formulations are also disclosed.Assignee: East Carolina University (Greenville, NC) Government interest: This invention was made at least partially with United States Government support under grant RO1CA47217-06 from the National Cancer Institute. The Government may have certain rights to this invention. [To date, no US patents have cited the '339 patent.]

Returning to the murder itself, some people have questioned the relatively light sentence given to Nyce for murdering his wife. Go back to 1978 and review the case of Theodore Streleski, a graduate student at Stanford University who murdered his advisor.

Theodore Streleski was a graduate student in mathematics at Stanford University who murdered his former faculty adviser, the professor Karel de Leeuw, with a ball peen hammer in August 1978. Shortly after the murder, Streleski turned himself in to the authorities, claiming he felt the murder was justifiable homicide because de Leeuw had withheld departmental awards from him and demeaned Streleski in front of his peers. Streleski described how at one point, de Leeuw had insulted his shoes.

Streleski had been a pursuing his doctorate in the mathematics department for nineteen years and he felt that Stanford faculty were unfairly withholding his promotion. Streleski also confessed to having the names of de Leeuw's colleagues on a "hit list".

During his trial Streleski told the court he felt the murder was "logically and morally correct." Streleski was convicted of second degree murder and he served seven years in prison for his actions.

***The front page of The Trentonian on Monday, January 23, 2006, carried the headline:"Nyce Vows Payback." There was a sub-headline: "Killer in 'Dateline' Interview: 'I expect to put people in jail who lied to put me here.'"

Some of the text: "The 55-year-old research scientist from Hopewell Township finally got his national television audience last night when 'Dateline NBC' aired its exclusive interview from defense attorney Robin Lord's Trenton office, taped shortly after Nyce's July 14, 2005 sentencing in Mercer County Superior Court [Trenton, NJ].

Of the severity of the 5-10 year sentence:

But Murphy asked Galuchi if the sentence left a queasy message that in New Jersey a man can kill his wife and only get a 5-to-10 year prison term. "I think some people could certainly derive that message from the verdict," Galuchie said.

The Trentonian did not discuss details of Nyce's scientific work (including the patents at East Carolina University) or the commercial failure of the endeavor.

***The Streleski murder is not the only one involving a grad student.

Wayne State University Assistant Dean of the Graduate School Matthew Seeger noted that the shooting of Dr. Olbrot by Wlodzimierz Dedecjus on December 10, 1998 reflects an extreme and rare pattern of violence. Similar events have occurred at graduate programs at Stanford University [Streleski], the University of Iowa, and most recently, a doctoral student at Harvard committed suicide.

Dedecjus, 48, came to the United States from Poland in 1989. After receiving an associate's degree at a community college, he entered Wayne State University, and earned a bachelor's degree. He entered the graduate program in 1995 and earned a master's degree under a different advisor before entering the Ph.D. program in electrical engineering, with Dr. Olbrot as advisor .

Although Dedecjus was taking an independent study with Dr. Olbrot this semester, Dedecjus was not enrolled in the course where the shooting occurred.

Dr. Olbrot, 52, was born in Lisow, Poland. He received his bachelor's (1970), graduate (1973) and postgraduate (1977) degrees from the Technical University of Warsaw. He was also on its faculty in the department of automatic control until 1987. In 1988 he was appointed to the electrical and computer engineering faculty at Wayne State University. He was promoted to a full professorship in 1992.

***The is a book by John Glatt on the Nyce murder: Never Leave Me: A True Story of Marriage, Deception, and Brutal Murder.

One amazon.com reviewer of the book noted:

Unfortunately, I found the latter part of the book seems to focus on the defense attorney Robin Lord, who the author proclaims as one of the best attorneys in that area; specifically, touting her representation of Jesse Timmendequas, whose conviction led to the passing of Megan's Law. While focusing on Lord, the reader is introduced to her ridiculous courtroom theatrics and temper tantrums and, unfortunately, they seem to take up a great portion of the second half of the book.

Lastly, I must disagree with a previous reviewer who proclaimed this to a be complex case. It's not really a case of "Who done it?" as Nyce, an alleged medical genius, didn't even have enough sense to complete clean up all the blood from his garage; neither did he take the time to put the car seat back into a position, after driving atop his 6' 4" frame atop his deceased wife's 5' 2" body, that would have made it appear more likely that she was driving. Duh! I guess medical geniuses don't have much time to watch Law & Order or CSI?!

IPBiz notes that the judge who presided over the Nyce case was suspended during the month of December 2006, but returns in January 2007. That's another story.

*** Of the University of Iowa shootings, one now has a movie (Dark Matter).

In the movie, Meryl Streep plays a philanthropist and patron of fictional Valley State University, and she is an aficionado of Chinese culture. The evil grad student is Liu Xing (played by played by Ye Liu). The advisor goes south when the grad student begins to pursue a project that goes against his advisor’s favorite theory. When the advisor deep-sixes the Ph.D. thesis, the grad student gets a gun.

The movie director, himself a student at the time of the shootings, saw a screen saver from a Chinese student association that read “Long live Gang Lu.”

UPDATE.

The shootings at NIU on 14 Feb. 08 are alleged to be the act of Steven Kazmierczak. The 27 year old Kazmierczak had been a graduate student in sociology at Northern Illinois University as recently as spring 2007, and was currently enrolled as a graduate student at the University of Illinois at Urbana-Champaign. The suspect's father is Robert Kazmierczak of Lakeland (Polk County), Fla.

UPDATE. 23 July 09

IPBiz ran across text on the Streleski matter from the book Disciplined Minds which casts De Leeuw in a somewhat dark light. It suggests De Leeuw forced Streleski to give up a part time job at Lockheed to study at Stanford, but did not provide financial support for Streleski either before or after Streleski passed his qualifying exams. In this, Streleski's long period at Stanford arose from having to attend only after working jobs to get money to pay. The account also mentioned that Streleski's marriage collapsed. Of contact, this account suggests that Streleski had taken seven courses from de Leeuw. None of this, of course, is a justification for murder.

The PCT application of Hwang that is subject to discussion is WO 2005 / 063972 published July 14, 2005, which is after the date of publication of the 2005 Hwang article in Science. The title is "Embryonic Stem Cell Line and Method for Preparing the Same." Priority is claimed to PCT filing PCT / KR03 / 002899, filed December 30, 2003, which is before the date of publication of both the 2004 and 2005 Hwang publications in Science. The international application number is PCT / KR2004/ 003528. The applicant (other than in the US) is Seoul National University. The first line 72 inventor is Sung Il Roh.

The New Scientist article says absolutely nothing about the patent application filed by Gerald Schatten in the United States. As pointed out earlier on IPBiz, the US patent application in question is published application 20040268422 (published December 30, 2004), based on US application 10/821200, filed April 9, 2004. Gerald P. Schatten is the first listed inventor. In an odd coincidence, the date of publication of the Schatten application, Dec. 30, 2004, is the same date as the international filing date for the Hwang PCT (Dec. 30, 2004). Further, in terms of priority issues, recall that the Schatten application claims priority to a provisional application: The present application claims the benefit, under 35 U.S.C. .sctn. 119, of U.S. Provisional Patent Application Ser. No. 60/461,139, filed 9 Apr. 2003, the contents of which are incorporated herein by reference. April 9, 2003 is before the first Korean filing of December 30, 2003. As to claims relating to human stem cells, neither Hwang nor Schatten had enabled such entities through nuclear transfer in 2003, so that question would be present in prosecution of either case. Further, in light of the failure of everyone to create such stem cells through the present time, there would be a question of undue experimentation.

[Schatten's pertinent claims: 28. A method comprising the steps of: introducing nuclei along with one or more molecular components into an egg; culturing said egg to produce a viable embryo; dissociating blastomeres from said embryo; and culturing said blastomeres to produce stem cells. Also, 47 and 49.]

**Note alsoWO/2004/091288 (Magee Womens)

Text of New Scientist article of Jan. 18, 2006:

A patent application, filed by disgraced stem cell scientist Woo Suk Hwang and colleagues and based on work now admitted to be fabricated, may nevertheless be granted, a New Scientist investigation has found.

Furthermore, the filing of the application could present a substantial obstacle to anyone seeking future patents in the same field.

The application was filed on 30 December 2003 by Hwang, along with 19 other researchers at Seoul National University. SNU has publicly apologised for Hwang’s misconduct, but told New Scientist that it "does not currently intend to abandon the patent applications as some incorrect news media report". However, Jung-Hye Roe, Dean at the SNU Office for Research Affairs adds: "We are considering modifying the applications based on the report from the SNU committee", which found Hwang's work to be falsified.

Hwang's patent submission (in pdf format) stakes a claim in over 120 countries for a legal monopoly on the broad concept of “an embryonic stem cell (ESC) line derived from a nucleus-transferred oocyte prepared by transferring a nucleus of a human somatic cell into an enucleated human oocyte”. Or, in simple terms, an ESC line derived from a cloned human embryo – a technique which, if achieved, could prove crucial to future therapeutic cloning methods.

In support of the claim, the application details experimental methods and cites a sample ESC line deposited with the Korean Cell Line Research Foundation. The sample, number KCLRF-BP-00092, has since been discredited by the SNU investigation committee. The committee's report was published on 10 January.

Flying saucerThe UK Patent Office has taken a leading role in trying to clarify what aspects of stem cell research can be patented in Europe. Lawrence Smith-Higgins at the UKPO says: “European patent examiners are not interested in whether something will work or not. The commercial world, which is where patents belong, will judge. As long as an invention is not clearly contrary to scientific laws – like time travel – research has no bearing on the grant of a patent.”

Unproven ideas are often be easily patented because there is a good chance no one has previously filed the same claim. In 1973, for example, the British Railways Board was granted a patent on plans for a notional nuclear-powered “space vehicle” that was unashamedly a flying saucer.

The New Scientist article has quotes from a number of patent attorneys:

George Schlich, a patent attorney and counsel for leading stem cell company Stem Cell Sciences agrees with Smith-Higgins: “Europe takes a matter-of-fact view. Does it really matter if the man made up his results? Let him try and sell it."

Not enforceableBut while the patent application appears to stand a good chance in Europe, the situation in the US is different, explains David Wilson, a biotech litigator with international law firm Bird and Bird.

“In Europe, what matters is whether an invention is novel, inventive and sufficiently described. Fraud is not a ground for invalidating a patent," he says. “In the US an applicant has an obligation to give the US Patent and Trademark Office (USPTO) any material information. It is all right to leave out the theory of how the invention works, or even get the theory wrong, as long as you don’t say ‘I have built it’ when you haven’t. If you do this you may still obtain your patent, but if challenged your patent may not be enforceable”.

Because of this, it has become common practice in the US for anyone accused of infringing a patent to accuse the inventor of “inequitable conduct” or “fraud on the Patent Office”, by withholding or misrepresenting information. However, even in cases where information was misrepresented, the patent holder has not always lost the case.

Undue experimentationOren Livne, a registered patent agent and associate director for licensing at the University of California, Santa Barbara, US, adds: “The bottom line is, even if the results are faked, he might still get a patent – if his method for making a stem cell line describes how to do it in a way that someone else could make a stem cell line without 'undue experimentation'."

Furthermore, warns Robert Berliner, a patent lawyer with US law firm Fulbright & Jaworski in Los Angeles: “The USPTO was once much more pro-active in dealing with fraud or inequitable conduct. The present view is that examiners do not have the resources."

Greg Aharonian, author of the Internet Patent News Service and outspoken critic of the USPTO, is pragmatic: “If the patent office is paying any attention, they will ask for some experimental results and further enablement details, like they do for perpetual-motion machine patent applications”.

But even if the Hwang patent is now abandoned, or proved worthless in some countries, or found un-enforceable in court, there is still a sting in its tail. Once a patent application has been published anywhere in the world, it becomes a permanent prior disclosure.

“The Hwang publication could block subsequent patents on work that constitutes an obvious extension of what Hwang described, even if the Hwang work proves unworkable itself," says Wilson. "But whether it could block patents to the same work depends on whether what Hwang described works or not.”

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.